Introduction

An important part of achieving a successful resource development project in British Columbia (BC) is understanding the relevant aboriginal issues.

Unfortunately, there are no clear rules in BC concerning what the obligations of a resource company are with respect to aboriginal people who may be affected by a project. The law requires that aboriginal people be ‘adequately consulted with, and if necessary accommodated’ before a project proponent may receive approval of a licence or permit from the government. The legal obligation to conduct consultation with the aboriginal people who may be affected by the project is solely an obligation of the government. However, in practice the government generally delegates much of that obligation to the project proponent, so the project proponent generally has a very considerable role and contact with the aboriginal groups during the consultation process.

The following provides background to the aboriginal issues that exist in BC and an overview of those issues that are particularly relevant to a resource company considering a project in BC.

Aboriginal Issues in Canada

Aboriginal issues in Canada are different in different parts of Canada.

Canada is a huge country and was largely settled by Europeans – and for most of the settlement period as a British colony – with the settlement moving from east to west. One result of this is that the approach to treaties or other settlements with the aboriginal people took place over a long period of time, and different arrangements were made with different aboriginal groups.

Throughout much of Canada, below the 60th parallel, land claims have been settled by “cede and surrender” treaties. The basic concept of these treaties was that the aboriginal people agreed to give up any claim of aboriginal rights or title in exchange for specified “reserves” where the aboriginal groups (characterized as “bands”) had the exclusive right of possession and the right to hunt, fish and trap throughout a much larger area shared with other aboriginal groups. The treaty terms also included small amounts of money to be paid to the aboriginal groups.

However, as noted below, BC has largely been an exception to the historic treaty process. Only three treaties (the Nisga’a Treaty in 2000, the Tsawwassen Treaty in 2008 and the Maa-nulth Treaty which is effective April 1st, 2011) have been entered into in BC since 1923, and most of BC is not subject to a treaty.

There are many different aboriginal groups across Canada, with approximately 200 different aboriginal groups in BC alone. There is no single body which represents all aboriginal people in Canada. The closest thing to a national aboriginal organization is probably the Assembly of First Nations, but it does not have any legal authority over individual aboriginal groups.

There are aboriginal issues all across Canada, and the amount of dissatisfaction amongst the aboriginal people – as measured by media reports, blockades, and litigation – appears to be on the increase. Many of the aboriginal issues throughout Canada are described as “specific claims”, which are usually claims based on an alleged breach by the Federal or Provincial governments of a treaty or other agreement with a specific aboriginal group. The other type of aboriginal issue is known as a “comprehensive claim” in which the claim is based on there never having been any resolution of the aboriginal rights and title claims in the first place.

Aboriginal Issues in BC

The aboriginal issues in BC tend to be significantly different from those throughout the rest of Canada.

Although there are many “specific claims” in BC, most of the problematic claims in BC are “comprehensive claims” where the issue is as fundamental as who owns the land (that is, the issue in dispute is whether the land is owned by the government of BC, or the aboriginal group(s) claiming it).

This difference is largely because very few treaties were made with the aboriginal people in BC and most of BC west of the Rocky Mountains is not subject to any treaty.

BC had a policy of creating reserves for the aboriginal people, but unlike the rest of Canada, the reserves were not associated with treaties where the aboriginal people “ceded and surrendered” their claims of aboriginal rights and title.

Virtually all of BC is claimed as part of the traditional territory of a least one aboriginal group, and much of BC is subject to such claims from a number of different aboriginal groups.

There are two basic types of aboriginal claims which are recognized at law: ‘aboriginal title’ claims (similar to private property ownership – and arguably includes ownership of the under surface rights) and ‘aboriginal rights’ claims (consisting of things such as an aboriginal right to hunt, to fish, or to harvest trees for personal use).

There is a considerable tension in the aboriginal communities in BC as the Federal and Provincial governments try to reconcile the fact that the aboriginal people were the residents of BC when the Europeans arrived, with the fact that those who arrived later ended up with registered ownership and effective control of all of the land in BC outside of the reserves without any treaty, or any act of surrender, or any clear legislation.

Significant Legal Principles, Government and Private Initiatives, and Recent Cases

Canadian Constitution: 1982

Canada is a confederation and the legal powers are divided between the Federal and Provincial governments.

This division of powers was set out in the British North America Act of 1867. The power to deal with Indians was specifically given to the Federal government, while the ownership and power to deal with the land and resources was given to the Provincial governments, including BC.

In 1982 Canada formally changed its relationship with Britain by ‘bringing the constitution (formerly the British North America Act) home to Canada’. As part of this process there were some amendments made to the constitution, including s. 35(1) of The Constitution Act, 1982 which states that:

35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (emphasis added)

The effect of s. 35 was that aboriginal rights received constitutional protection, so that after 1982 the Federal government, which had until that time exclusive jurisdiction over Indians, no longer had the power to alter ‘existing’ aboriginal rights.

After 1982 the Supreme Court of Canada interpreted s. 35 so that the ‘existing’ aboriginal rights included many rights that were not known or understood to exist in 1982.

Since 1982 the Supreme Court has identified what a number of these aboriginal rights are, and as they are identified by the Court, the rights become constitutionally protected.

BC Treaty Process: 1991

In 1991, the Federal and BC governments created the BC Treaty Process, with considerable input from the aboriginal people in BC.

The BC Treaty Process was intended to resolve the outstanding issues relating to the ‘comprehensive claims’ in BC. It is a voluntary process in which aboriginal groups are not required to participate. Aboriginal groups representing about two thirds of the aboriginal people in BC initially agreed to participate in the process.

The expectation in 1991 was that the BC Treaty Process would resolve all of the outstanding comprehensive claims by about 2001. In fact, only two treaties have actually resulted from the BC Treaty Process - one involving a small aboriginal group near Vancouver (the Tsawwassen Treaty in 2008) and the other involving the Maa-Nulth First Nations on the west coast of Vancouver Island. The only other treaty negotiated in BC since Treaty 8 in 1899 was the Nisga’a Treaty in 2000, and it was negotiated outside of the BC Treaty Process.

Many people have now concluded that the BC Treaty Process is a failure in its present form and is incapable of solving the comprehensive claims in BC.

Delgamuukw Case: 1997

This was a pivotal case in Canadian aboriginal jurisprudence.

Earlier cases had determined that there were some aboriginal rights relating to fishing and hunting that still existed in BC, but no case had determined whether or not aboriginal title still existed in BC. The position of the BC government was that aboriginal title in BC had been extinguished through the course of time and no longer existed in BC.

The main finding of the Supreme Court of Canada in this case was that aboriginal title still existed in BC, although the Court did not actually find any aboriginal title for the aboriginal groups claiming it because of a defect in the way the case was presented.

As a result of s. 35 of the Constitution, any aboriginal title determined by a Court would be constitutionally protected, and neither the Federal nor Provincial governments could enact legislation that would limit such aboriginal title without proper justification.

The Supreme Court of Canada went on to say how aboriginal rights or title could be ‘infringed’ by the government in appropriate circumstances, but only after completing a number of steps to justify such an infringement, including appropriate consultation with the aboriginal people who had the aboriginal rights or title.

Haida Case: 2004

This was another very significant decision of the Supreme Court of Canada - probably the most significant aboriginal case for the business community, including resource companies wishing to develop a project in BC.

The main issue in Haida was whether the government was obliged to consult with aboriginal people before approving an activity that might have an adverse effect on asserted but unproven aboriginal rights or title.

In 2004 the Supreme Court of Canada largely upheld the 2002 decision of the BC Court of Appeal in Haida, and determined that the government must consult with aboriginal people who might be affected by a project before granting rights to a project proponent to proceed with it.

The extent of the consultation required is to be determined by two factors: the strength of the aboriginal claim and the likely impact of the project on that claim should the project proceed.

In some cases the consultation process would require that the aboriginal group be ‘accommodated’ – meaning that the project would have to be altered in order to take their concerns into account. Most lawyers acting for aboriginal groups have interpreted ‘accommodation’ as a requirement that the aboriginal group receive some financial compensation. Another view is that accommodation means changing the project plans to accommodate the aboriginal concerns, but does not require the payment of any money until aboriginal title or rights are proven.

A very important part of the Haida decision was that although the aboriginal group would have a right to be consulted, the aboriginal group would not have a right of veto over the project.

The result of this consultation obligation is that the aboriginal groups across BC – most of whose claims are only asserted and are not proven – are involved in a negotiation process with the project proponent before any project is approved. This has been a major factor leading to project proponent’s frequently seeking to negotiate an ‘Impact Benefit Agreement’ or ‘IBA’ with the local aboriginal groups before a project proceeds.

New Relationship: 2005

By 2005 there was considerable tension in the aboriginal communities across BC. The BC Treaty Process was not going anywhere and the aboriginal people seemed to be in conflict with the government on every issue.

In an effort to improve the situation, in early 2005 representatives from several key aboriginal organizations in BC met with representatives of the BC government and negotiated the terms of a document which was intended to allow the parties to move forward. The government has described that document – frequently referred to as the “New Relationship” - as a “vision statement”.

The New Relationship refers to the parties agreeing to “shared decision-making about the land and resources” and “revenue and benefit sharing.”

Although the New Relationship initially resulted in better dialogue and a closer relationship between the leaders of the government and the leaders of many aboriginal groups, a number of aboriginal leaders are now expressing their dissatisfaction that the New Relationship has not resulted in any real change for the aboriginal people. The New Relationship has not resulted in any more certainty for a project proponent.

Conclusion

Despite the prominence of aboriginal issues in BC, claims asserted by aboriginal people remain largely unresolved and have led to considerable tension within aboriginal communities. While the legal obligation to consult with aboriginal people that may be affected by the project before issuing permits and approvals for a project is solely an obligation of the government, the duty is, in practice, largely delegated to the project proponent. The law with respect to consultation and accommodation of aboriginal people who may be affected by a resource project provides some guidance to proponents in this regard; however, the requirements for consultation and accommodation vary depending on the specific circumstances of the project and there are still no clear rules with respect to the process.